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Court: High
Topic: Asylum, immigration, citizenship
Category: Civil

HC73 - Asylum, immigration and citizenship list

1. This Practice Direction applies to all proceedings in respect of decisions or measures related to asylum, subsidiary protection, immigration, freedom of movement, naturalisation, citizenship and related areas and EU Treaty rights related to any of those matters (including but not limited to any proceedings referred to in s. 5(1) of the Illegal Immigrants (Trafficking) Act 2000 as amended).

2. (1) Subject to sub-paragraph (2), this Practice Direction applies to such proceedings, whether commenced before or after the date referred to in paragraph 27.

(2) Paragraphs 15 and 16, insofar as they concern the format of written submissions, shall apply to such submissions delivered on or after the 1st January 2018.

The Monday List

3. Save in cases of urgency or during a vacation, applications for leave to apply for judicial review ('applications for leave') shall first be made on a Monday in term (“the Monday list”) to the Judge in Charge of the Asylum immigration and citizenship List (“the Judge in charge of the List”).

4. Save in cases of urgency, any motion or application intended to be moved in a proceeding to which this Practice Direction applies shall be made returnable for the Monday list.

5. The cases listed for hearing in the next following two weeks within the Term will be called over in the Monday list to confirm that they will proceed and that the requirements of this Practice Direction have been met. Practitioners are obliged to ensure attendance at this positive call over with adequate instructions to ensure the matters listed for hearing are ready to proceed. Unless otherwise ordered, the order in which matters shall be taken in the Monday list is as follows:

(i) Call over of next 2 weeks’ hearing dates;

(ii) Matters listed in Advance Warning List;

(iii) New leave applications;

(iv) Matters listed for mention;

(v) Matters listed for hearing.

Pleadings

6. The attention of applicants is drawn to -

(a) Order 84 rule 20(3), which provides that it shall not be sufficient for an applicant to give as any grounds of relief or interim relief an assertion in general terms of the ground concerned, but the applicant should state precisely each such ground, giving particulars where appropriate, and identify in respect of each ground the facts or matters relied upon as supporting that ground, and

(b) the judgment of the Supreme Court in Babington v the Minister for Justice and Law Reform & Ors [2012] IESC 65 concerning compliance with that requirement.

7. The grounds advanced as to the entitlement in law to the reliefs claimed should not be confused with a statement of the relevant facts which should be confined to a distinct section of the Statement of Grounds entitled “Relevant Facts”.

8. The attention of respondents is drawn to Order 84 rule 22(5), which provides that it shall not be sufficient for a respondent in a statement of opposition to deny generally the grounds alleged by the statement grounding the application, but the respondent should state precisely each ground of opposition, giving particulars where appropriate, identify in respect of each such ground the facts or matters relied upon as supporting that ground, and deal specifically with each fact or matter relied upon in the statement grounding the application of which he does not admit the truth.

9. Statements of grounds and statements of opposition must state the names of any counsel who settled such documents.

Holding list

10. Where a case is transferred to the holding list to await the outcome of another proceeding, the legal representatives of both parties are obliged to notify the court as soon as possible after that other proceeding has been finalised so that a date can be assigned.

List to Fix Dates

11. Where a case is transferred to the list to fix dates, the solicitor for the applicant shall as soon as may be and not later than the following Wednesday, lodge in the Central Office for the attention of the Judge in charge of the List a copy of the Statement of Grounds and Statement of Opposition pinned together with a covering letter requesting the assignment of a hearing date.

12. Save where otherwise ordered, the applicant shall deliver written submissions within two weeks of the transfer of the case to the list to fix dates, and the respondents shall deliver replying submissions within a further two weeks.

13. Save by special leave of the Judge in charge of the List, no case transferred to the list to fix dates shall be given a date for hearing until all pleadings and written submissions are exchanged and complete and the matter is ready to be heard.

Written legal submissions

14. In the context of written legal submissions the terms of paragraph 5.19 of the Code of Conduct of the Bar of Ireland are recalled:

'In a civil case barristers must, at the appropriate time in the proceedings, inform the court of any relevant decision on a point of law and, in particular, of any binding authority or of any applicable legislation of which they are aware and which the barrister believes to be on point whether it be for or against their contention.'

15. The applicant’s written legal submissions shall contain the following sections:

A. List of legal questions/issues

Any legal question or issue required to be determined by the court shall be succinctly stated in a numbered list on the first page and presented in the form of an issue paper set out in this section.

B. Statement of relevant facts

This shall set out in chronological order the relevant facts. Key facts proved by exhibits shall be accompanied by reference to the page number(s) in the papers (referred to in paragraph 19 below) where the exhibit appears. Where a fact is disputed this shall be indicated. This shall be in the body of the submission and not in an annex.

C. Procedural history

This shall state in succinct form any relevant procedural history including the date of grant of leave, any injunctions or undertakings and any other interlocutory applications or appeals. This section shall include details of (a) any previous proceedings involving the applicant(s) in the Asylum, immigration and citizenship List and (b) any other civil or criminal proceedings involving the applicant(s) that could be potentially relevant to any of the issues or their factual background. In the case of any proceedings required to be mentioned in this section, details shall be given of record numbers, the outcomes, and full citations and dates for any judgments given.

D. Legal arguments

Legal arguments must be grouped under headings that refer to the specific questions or issues in section A of the submissions. Each section shall also make reference to the particular ground(s) on which leave has been granted. Outline legal argument supporting the grounds sufficient to permit the respondent to prepare its response shall be presented. Substantial legal argument not addressed in the written legal submissions shall not be permitted at the trial of the action without special leave of the court.

16. Save where otherwise specially ordered, the respondent shall not be required to deliver submissions until after receipt of the applicant’s submissions. The respondent’s written legal submissions shall contain the following sections:

A. Additional/Alternative List of legal questions/issues

If the Respondent does not accept the Applicant’s list of issues, or the completeness of that list, a list of legal questions or issues required to be determined shall be set out, presented in the form of an issue paper to include additional or alternative legal questions or issues to those presented by the applicant which the respondent considers necessary.

B. Alternative statement of relevant facts

If the Respondent does not accept the Applicant’s statement of facts as complete and accurate, an alternative complete statement of facts shall be set out in chronological order (not simply the areas of disagreement). This shall be in the body of the submission and not in an annex.

C. Alternative statement of procedural history

If the Respondent does not accept the Applicant’s statement of procedural history as complete and accurate, an alternative complete statement of procedural history shall be set out in chronological order (not simply the areas of disagreement).

D. Legal arguments

The respondent’s legal arguments shall be by way of reply to and shall, where possible, follow the headings of the applicant’s arguments.

Amendment of Pleadings

17. Any pleading which has been amended shall, in accordance with Order 28 rule 9, Rules of the Superior Courts, be marked with the date of the order under which the same is amended, and the day on which such amendment is made, as follows:

“Amended the …… day of …… pursuant to order of Mr. / Ms. Justice …… dated the day …… of ….…”

Lodgement of papers for substantive hearings

18. All papers lodged for the attention of the Judge in charge of the List shall be accompanied by a covering letter outlining the reason why such papers are being lodged (e.g., to obtain a date, or for the purpose of a pending substantive hearing on a named date).

19. The applicant’s solicitor shall lodge in the Central Office for the Asylum, immigration and citizenship List a full set of papers including written legal submissions of both parties no later than 12 noon on the Thursday of the week preceding the week in which the case is listed for substantive hearing. This requirement does not apply to motions in the Monday list.

20. Books and papers for use by the Court should be presented and organised as follows:

a) Each book of pleadings and/or exhibits should be bound and paginated;

b) Each book should identify on its cover the party for whom it is lodged;

c) Each book should contain a contents page. All exhibits should be identified therein by reference to the exhibit number, the page number where it is to be found and a description of the item;

d) In large volumes of country of origin documentation particular passages relied upon should be highlighted;

e) Books shall not contain more than 150 pages each;

f) The parties shall deliver copies of legal authorities /case law  referred to in the written legal submissions in bound books not exceeding 150 pages each, tabulated by reference to a table of contents and the name of the submitting party (e.g. ‘Applicant’s Authorities’). The respondent shall not provide authorities provided by the applicant(s).

21. An electronic copy of written legal submissions in word document format (not pdf) shall be sent by email addressed to the Asylum and Immigration Registrar by each of the parties as soon as delivered and in any event (unless otherwise ordered) no later than 12 noon on Thursday of the week preceding the date fixed for hearing using the following e-mail address: asylumsubmissions@courts.ie

22. This electronic version of the submissions shall hyperlink case law citations.

23. The title of the email enclosing submissions should appear in the following format: title and record number, date of hearing (if already fixed), the party on whose behalf the submissions are being lodged.

Hearing dates

24. Practitioners are requested to note that, given the possibility of custody cases or other urgent cases coming into the list without notice, hearing dates assigned are subject to change in the event of a date for a custody case or an urgent case being required.

Leave to appeal

25. Applications for a certificate pursuant to section 5(6) of the Illegal Immigrants (Trafficking) Act 2000 shall be made in the Monday list on notice to the respondent within 28 days of the oral pronouncement of the decision concerned and shall be supported by written legal submissions setting out the points of law of exceptional public importance arising and explaining how the application otherwise complies with the criteria for the grant of a certificate in the subsection.

Non-compliance and Costs

26. In cases of failure to comply with this practice direction, the court may make such order as is appropriate including any order as to costs against a defaulting party, and/or an order as to costs against a defaulting solicitor under Order 99 rule 6, and/or an order disallowing costs as between a solicitor and his or her client under Order 99 rule 7.

Commencement and previous Practice Directions

27. This Practice Direction shall come into operation on the 1st January, 2018.

28. Practice Direction No. HC68 of the 22nd September 2016, save for paragraphs 3(d), 4 and 6 thereof, shall, subject to this Practice Direction, continue to apply.

29. Practice Direction No. HC69 of the 22nd September, 2016 is revoked on the coming into operation of this practice direction.

Peter Kelly
President of the High Court
7th December 2017.